California banner-tow ban nixed; Hawaii’s ban could be next

 - January 10, 2008, 5:05 AM

A ban enacted in September by the southern California coastal city of Huntington Beach on all aerial advertising flights in its airspace, which could have had profound implications for general aviation, has been repealed before being enforced. The law, believed to be the first attempt by a local jurisdiction in the continental U.S. to regulate airspace use, was rescinded in a secret city council session in November.

Despite the FAA’s long-established jurisdiction over navigable airspace, the city council had claimed the right to regulate and even forbid flight in the air over Huntington Beach and up to three miles offshore. Citing safety, noise and pollution from overflights–specifically by banner-towing aircraft–the city of 190,000 sought to levy fines of up to $1,000 on anyone flying over the town at any altitude from the surface to infinity. The ordinance specified banner towing, externally mounted signs and light arrays on any airborne platform, but did not prohibit skywriting or commercial sightseeing flights or delineate aircraft by size, weight or engine power.

The council rescinded the ban shortly after the FAA removed language from its general aviation operations inspector’s handbook, which a federal appeals court cited a year ago in upholding a similar Honolulu statute. Referring specifically to banner towing, the deleted wording said, “The operator is responsible for acquiring knowledge of state and local ordinances which may prohibit or restrict banner tow operations.”

The architects of Huntington Beach’s ban believed the 9th Circuit Court decision on the Honolulu statute protected their measure from being overturned. The Honolulu aerial advertising ban and the California measure relied on what the 9th Circuit saw as implied FAA transfer of jurisdiction over airspace through the language in the certificates of waiver that relieve operators of certain altitude limitations. The wording removal also threatens the Honolulu statute, should an operator challenge the law in court.

Challenges Fly, Lawsuits are Filed
Challenges to the Huntington Beach law arose immediately after its passage. On October 1 a Los Angeles area-based pro-life group filed a federal district court suit claiming that banning aerial advertising violated its First Amendment rights. Enforcement of the ban was stalled by a temporary injunction issued in response to the suit. A lawyer for the Huntington Beach city attorney’s office previously told AIN that by not specifying altitudes or noise levels, the law would avoid federal preemption. He added that as a “content neutral” ban on all use of a given communication medium it would not discriminate between “approved” and “disapproved” speech.

Following the repeal, a Huntington Beach city councilwoman told The Orange County Register that the FAA “slapped us on the wrist for trying this.”